A decision allowing a man who killed a police officer with a snowplow escorted passes into the community was reasonable and should stand, Ontario's top court ruled Tuesday.
In rejecting arguments by the Crown, the Ontario Court of Appeal sided with the Ontario Review Board that granting Richard Kachkar the privilege posed minimal risk to the public.
The court leaned heavily on expert evidence before the board from a forensic psychiatrist, Dr. Philip Klassen, that Kachkar would show clear warning signs before developing full-blown psychosis.
"In my view, Dr. Klassen's evidence provided ample support to sustain the conclusion that the community-access condition would not compromise public safety," the Appeal Court found.
Sgt. Ryan Russell was killed in January 2011 as he tried to stop Kachkar, then 44, who had stolen a snowplow and gone on a rampage through downtown Toronto.
Kachkar, charged with first-degree murder, was found not criminally responsible on account of a mental disorder in March 2013.
"It is important to remember that, despite the respondent's actions on Jan. 12, 2011, and their tragic consequences, he was not convicted," the Appeal Court noted.
"The jury recognized that the respondent is not criminally responsible — but ill."
Last April, the Ontario Review Board heard a joint submission from the Crown and Kachkar's lawyer that he should be kept in a medium security unit at the Ontario Shores Centre for Mental Health Sciences in Whitby, just east of Toronto.
They suggested Kachkar be allowed escorted access only onto the hospital grounds.
Widow sees decision as 'a slap in the face'
The board, however, angered Russell's widow Christine by going further and allowing Kachkar escorted visits into Whitby.
"We do not believe that a pass into the community, accompanied or escorted by staff, if determined to be appropriate by the person in charge at Ontario Shores, can put the public at risk," the board decided.
Christine Russell called that view a "slap in the face."
The Crown appealed, arguing the board's decision was unreasonable, that it was made without hearing submissions on the issue, and that allowing Kachkar out put the public at undue risk.
Among other things, the Crown argued at the appeal hearing in January that Kachkar could suddenly become unmanageable resulting in a "dangerous situation."
Klassen, however, had made it clear Kachkar would only get out based on his behaviour, his response to treatment, and only when the hospital felt he was ready.
The Appeal Court also accepted new evidence from the hospital's medical director, Dr. Karen DeFreitas, who concluded the board decision was justified given Kachkar's clinical condition.
The unanimous ruling also rejected arguments the board had been unfair to the Crown.
The hospital has not yet allowed Kachkar into the community, although his lawyer has said he had been allowed off-ward more than 100 times on hospital property.
NCR patients are subject to annual reviews where board members decide whether they should get more or fewer privileges, or even be given an absolute discharge.
Kachkar's next review is scheduled for April 22.